The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Strict Liability

Strict Liability for Lending Your Car to a Driver with a Suspended License?

So the state of Washington seemed to argue, and a trial court agreed; but the Washington Court of Appeals says no.


From State v. Elwell, decided earlier this month by the Washington Court of Appeals (Justice Tracy Staab, joined by Justices George Fearing and Laurel Siddoway):

This is a statutory construction case. Melinda Elwell was convicted of allowing an unauthorized person to drive her vehicle under RCW 46.16A.520. The statute provides that "It is unlawful for any person in whose name a vehicle is registered knowingly to permit another person to drive the vehicle when the other person is not authorized to do so under the laws of this state."

At trial, the district court judge held that the State need only prove that Ms. Elwell knowingly permitted another to drive but did not need to prove that she knew the person was unauthorized to drive. On direct appeal, the superior court reversed, holding that the adverb "knowingly" applies to the entire phrase and requires the State to prove that Ms. Elwell knew the person driving her vehicle was not authorized to drive. The State was granted discretionary review and asked this court to reverse the superior court. As a matter of first impression, we agree with the superior court and read the statute to require a mens rea component to each element of the crime….

In this case, when knowingly modifies how the subject performed the entire action, it necessarily includes the last part of the phrase "when the other person is not authorized to do so." Thus, a plain reading of the statute requires the State to prove a defendant knew the driver was not authorized to drive.

In addition to traditional definitions and grammatical rules, the phrase "knowingly permit" has also developed a common law definition. While somewhat unartful, the term is commonly used in statutory language. Although there is no case law interpreting this particular statute, there is significant case law interpreting this phrase or similar phrases. These cases overwhelming hold that the phrase "knowingly permit" requires proof that the subject knew of the illegal activity, not just the circumstances that could lead to illegal activity….

In this case, the State argues that the statute is ambiguous and legislative history supports its restrictive reading of the statute. In 1987, the Washington State Legislature re-codified and amended a variety of statutes relating to driving without a license. Before 1987, the wording of the statute that was eventually codified as RCW 46.16A.520 read "[i]t is unlawful for any person in whose name a vehicle is registered knowingly to allow another person to drive the vehicle knowing that the other person is not authorized to do so under the laws of this state." (Emphasis added) The statute was modified to change "allow" to "permit," and change "knowing" to the conjunctive verb "when." The State argues that by removing the second "knowing" from the statute, the legislature signaled its intent to alter the mens rea element.

While the State's position is possible, the amendment does not "clearly establish" this legislative intent sufficient to overcome the rule of lenity. "If a penal statute is ambiguous and thus subject to statutory construction, it will be 'strictly construed' in favor of the defendant." …

Finally, in construing the necessary mens rea element for this statute, we are also guided by constitutional concerns. When considering the mens rea element of a crime, we should avoid a statutory reading that would criminalize a broad range of innocent conduct. The State's interpretation of the statute would criminalize a substantial amount of innocent conduct. Not only would this include lending vehicles to friends and family members, but would naturally encompass rental car companies and businesses that employ drivers. Anyone who lends a vehicle to someone who—it turns out—is unauthorized to drive in Washington would be subject to criminal charges.

{At oral argument, the State suggested that persons lending a vehicle could protect themselves by going to the Department of Licensing website and inputting the driver's license number and birthdate to verify the driver's licensing status. This solution has numerous problems. It assumes access to the internet at the time of lending; it assumes a lender must check each time (or each day?) that they lend a vehicle; and it assumes that the DOL website would provide the driving status of a driver with an out-of-state license.}

Sounds right to me.